on which this controversy turns. It provides that "when the Indian title to all the lands lying between the State of Missouri and the Missouri River shall be extinguished, the jurisdiction over said lands shall be hereby ceded to the State of Missouri, and the western boundary of said State shall be then extended to the Missouri River." These are the only material words. Act of June 7, 1836, c. 86, 5 Stat. 34.

In anticipation of the action of Congress the constitution of Missouri was amended as follows: "That the boundary of the State be so altered and extended as to include all that tract of land lying on the north side of the Missouri River, and west of the present boundary of this State, so that the same shall be bounded on the south by the middle of the main channel of the Missouri River, and on the north by the present northern boundary line of the State, as established by the Constitution, when the same is continued in a right line to the west, or to include so much of said tract of land as Congress may assent." Amendment ratified at the Session of 1834-5, Article II, § 4. Mo: Rev. Sts. 1856, p. 91. Then, on December 16, 1836, the State assented to the act of Congress by "An Act to express the assent of the State of Missouri to the extension of the western boundary line of the State." Laws 1st Sess. 9th Genl. Assembly, p. 28; and, on January 17, 1837, a copy was transmitted to Congress.by the President. Meantime, on September 17, 1836, a treaty was made with the Indians, in which they expressed their belief in the advantage of a natural boundary between them and the whites and released their claims. Indian Affairs. Laws and Treaties. Compiled by Kappler, 1904, p. 468. On March 28, 1837, the President, by proclamation, declared that the Indian title to lands had been extinguished, in pursuance of the condition in the act of Congress, and the act went into full effect. 5 Stats. 802. Appendix No. 1. Whatever might be the interpretation of the act taken by itself and applied between two long settled communities, we think that the circumstances and the history of the steps that led to it show that the object throughout was that expressed

by the memorial; as we have said, not to gain some square miles of wilderness, but to substitute the Missouri River for an ideal line as the western boundary of the State, so far as possible, that is from the northern boundary to the mouth of the Kaw. That this was understood by Missouri to be the effect of the act is shown by a succession of statutes declaring the boundaries of the river counties in this part. They all adopted the middle of the main channel of the river; beginning with the act that organized the county of Platte, approved December 31, 1838, Mo. Laws, 1838, pp. 23-25, and going on through the Revised Statutes of 1855, p. 459, § 12 (Clay), p. 466, § 33 (Platte), p. 478, § 65 (Jackson), etc., to 2 Revised Statutes, 1879, ch. 94, §§ 5177, 5198 & 5237. The construction ís contemporaneous and long continued, and we regard it as clear. It is confirmed by the cases of Cooley v. Golden, 52 Mo. App. 229, and St. Joseph & G. I. R. Co. v. Devereux, 41 Fed. Rep. 14, both of which cases notice that the act extended the boundary to the river, and not merely to the bank.

It follows upon our interpretation that it is unnecessary to consider the evidence as to precisely where the line as surveyed ran from opposite the mouth of the Kansas or Kaw. If the understanding both of the United States and the State had not been a wholesale adoption of the river as a boundary, without any niceties, still, as the cession "to the river" extended to the center of the stream, it might be argued that even on Missouri's evidence there probably was a strip ceded at the place in dispute. But from the view that we take such refinements are out of place. The act has to be read with reference to extrinsic facts because it fixes no limits except by implication. We are of opinion that the limit implied is a point in the middle of the Missouri opposite the middle of the mouth of the Kaw. Decree for the defendant.

Argument for Plaintiffs in Error.

213 U.S.

BONNER v. GORMAN, ADMINISTRATOR.

ERROR TO THE SUPREME COURT OF THE STATE OF ARKANSAS.

No. 102. Submitted February 23, 1909.-Decided April 5, 1909.

When parties have been fully heard in the regular course of judicial proceedings an erroneous decision does not deprive the unsuccessful party of his property without due process of law within the meaning of the Fourteenth Amendment.

Where the Federal question is raised for the first time on the second appeal and the state court refuses to consider it, it comes too late. Unless a decisión upon the Federal question is necessary to the judgment, or was in fact made the ground of the judgment, this court has no jutisdiction to review the judgment of the state court. Writ of error to review 80 Arkansas, 339, dismissed.

THE facts are stated in the opinion.

Mr. James P. Clarke, Mr. Rufus J. Williams and Mr. J. R. Beasley, for plaintiffs in error:

There can be no reasonable doubt of the existence of a Federal question in this case.

But whether there is a Federal question or not will be determined by this court for itself upon an examination of the record. Freeland v. Williams, 131 U. S. 405; Davidson v. New Orleans, 96 U. S. 97.

The Supreme Court of Arkansas having denied a constitu+ional right this court has jurisdiction to review the judgment. Boyd v. Thayer, 143 U. S. 135.

Raising the Federal question for the first time in the appellate state court, if it be there considered, or necessarily involved in the decision, gives the right of review in this court. Railroad Co. v. Elliott, 184 U. S. 530.

Plaintiff in error was denied due process of law both at law and in equity. Due process of law signifies a right to be heard

213 U. S.

Argument for Defendants in Error

in one's defense. Hovey v. Elliott, 167 U. S. 446; Windsor v. McVeigh, 93 U. S. 274; R. R. Tax Cases, 13 Fed. Rep. 722; Galpin v. Page, 18 Wall. 350.

In every judicial proceeding a fair trial is an indispensable element of due process of law. Davidson v. New Orleans, 96 U. S. 97; People v. Essex Co., 70 N. Y. 229.

If any question of fact or liability is conclusively presumed against the accused it is not due process of law. Ziegler v. R. R. Co., 58 Alabama, 594; Wilburn v. McCally, 63 Alabama, 436. Unless the party to be affected has an opportunity of being heard respecting the justice of the judgment sought it is not due process. Railroad Tax Cases, 13 Fed. Rep. 722.

No judgment of a court is due process of law if rendered without jurisdiction. Scott v. McNeal, 154 U. S. 34.

Mr. John Gatling, for defendants in error:

A real and not a fictitious Federal question is essential to the jurisdiction of this court over the judgments of state courts. Hamlin v. Western Land Co., 147 U. S. 531. See also Millinger v. Hartupee, 6 Wall. 528; New Orleans v. New Orleans Water Works Co., 142 U. S. 79-87.

When parties have been fully heard, an erroneous decision of the state court does not amount to a lack of due process of Central Land Co. v. Laidley, 159 U. S. 112. See also

law.

Walker v. Sauvinet, 92 U. S. 90; Head v. Amoskeag Co., 113 U. S. 9, 26; Morley v. Lake Shore R. R., 146 U. S. 162, 171; Bergmann v. Backer, 157 U. S. 655.

The record must show on what grounds the decision of the matter in which the Federal question is alleged to have been involved was made. Caperton v. Bower, 14 Wall. 216.

Even though a Federal question may have been raised and decided in the Supreme Court of the State, yet if so, it was not necessary to the decision of the cause, and therefore cannot avail here. Capital Nat. Bank of Lincoln v. First Nat. Bank of Cadiz, 172 U. S. 425; Murdock v. Memphis, 20 Wall. 635 California Powder Works v. Davis, 151 U. S. 389, 393; Rut

land R. Co. v. Central Vermont R. Co., 159 U. S. 630; Arkansas Southern Railroad Co. v. German National Bank, 207 U. S. 270; Hale v. Akers, 132 U. S. 564; Leathe v. Thomas, 207 U. S. 93; St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281.

All questions of fact are settled by the decision of the state court. Hedrick v. Atchison R. R. Co., 167 U. S. 673; S. C., 174 U.S. 96.

Not only the judgment but the evidence clearly shows that the plaintiffs in error were represented by counsel, so there was no want of due process or any fraud in the judgment. If it was erroneous, the remedy is by appeal.

The Federal question was raised too late. It was first suggested on the second appeal to the Supreme Court of the State, and then only on a motion to advance and affirm as a delay case. Union Mutual Life Ins. Co. v. Kirchoff, 169 U. S. 110. See also Bollin v. Nebraska, 176 U. S. 83; Citizens' Saving Bank v. Owensboro, 173 U. S. 636.

3

The question cannot be raised in the petition for a writ of error if it had not already been raised in due time in the state court. Johnson v. N. Y. Life Ins. Co., 187 U. S. 496; Simmerman v. Nebraska, 116 U. S. 54; Meyer v. Richmond, 172 U. S. 82..

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

In 1893 L. P. Featherstone qualified as administrator of the estate of Mary A. Cole, deceased, in the Probate Court of St. Francis County, Arkansas, with E. Bonner, one of the plaintiffs in error, as one of the sureties on his bond. In 1894, Featherstone, as administrator, filed his first settlement, and moved from Arkansas to Texas in 1895. Some time after he left the State, Henry P. Gorman, the defendant in error, was appointed by the Probate Court administrator in succession, and on February 1, 1898, he filed his first settlement, a second settlement in 1901, and in 1903 his third settlement. July 19, 1899, two